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As criminal allegations often circulate online long before cases reach court, questions continue to be asked about the presumption of innocence, jury impartiality, and the right to a fair trial.
The prevalence of true crime podcasts, social media commentary, and online speculation has raised significant concerns surrounding the impact of “trial by media” on Australia’s criminal justice system.
This was highlighted in the murder trial of Erin Patterson, which showed how true crime fans and social media speculation surrounding high-profile criminal trials can indoctrinate juries, undermine the presumption of innocence, and cause lasting harm to the reputation of accused individuals prior to their cases being fully resolved.
In a recent episode of The Lawyers Weekly Show, host Jerome Doraisamy discussed with Astor Legal principal Avinash Singh about the challenges faced by courts and criminal lawyers, and why more extensive protections and legal reforms may be required to safeguard justice in the digital age.
Social media and fair trials
The popularity of such media outlets is questioning the fairness of the presumption of innocence and an accused person’s right to a fair trial.
Singh noted that the proliferation of such content is creating immense challenges within legal cases.
“It seems to be an insatiable appetite that the public has for these types of media that they’re consuming,” Singh said.
“Regrettably, particularly for cases that are ongoing, that has a real detrimental effect, not just for that case, but for the criminal justice system in general.
“That’s something that ourselves, as defence lawyers, prosecutors and the court system itself, [have] been trying to grapple with and come to terms with this new phenomenon.
“Once the reporting or the discussion goes from the alleged facts to opinions or speculation, that’s when that line is crossed.
“By the time you get to a trial 18 months later, those things are going to be embedded in your mind.”
The potential for online coverage to influence jurors has also raised queries about whether existing jury selection processes are adequate, in a time when information about criminal allegations is accessible for years to come.
“You have this imbalance where effectively the prosecution are getting an audience with the general public and potential jurors about what their case is putting forward, what their case is, for a lengthy period of time with no pushback until the actual trial commences,” Singh said.
Legal protections in the digital age
As online commentary increasingly poses challenges for criminal proceedings, Singh noted that lawyers and the courts must consider whether existing safeguards are sufficient to protect trial ethics while preserving freedom of expression.
“I think we’re at a stage now where some protections need to be put in place, we can look at other jurisdictions to see how they deal with it differently to Australia, and we may be able to get some guidance from them,” Singh said.
“In America, defence lawyers and prosecutors are allowed to ask jurors questions prior to them being empanelled or chosen on a jury to gauge where their mind is, what they’ve read about a particular case, what they might be thinking and what they understand about it.
“That’s not something that we have in Australia.”
Singh alluded to the necessity of potential reforms that could better balance public interest with the rights of the accused.
“Just not disclosing a person’s name or identifying them, but still allowing details of the case to be reported, I think would meet the needs of open justice while also protecting the interests of the accused,” Singh said.
“That generally is not what Australian courts have found; so that’s something that should perhaps be given consideration going forward.
“In the age of social media, in the age of true crime podcasts, it’s fair to say the justice system has to respond to the world that we’re now living in.
“And if it’s not, then, there could be some real adverse consequences.”
